The State ex rel. White v. Fendorff

• Decision Date: 25 June 1927
• Docket Number: 25909
• Parties: The State ex rel. R. F. White, Appellant, v. F. E. Fendorff, Collector of the Revenue
• Court: Missouri Supreme Court

296 S.W. 787

317 Mo. 579

The State ex rel. R. F. White, Appellant, v. F. E. Fendorff, Collector of the Revenue

No. 25909

Supreme Court of Missouri

June 25, 1927

Appeal from Miller Circuit Court; Hon. Hency J. Westhues Judge.

Affirmed.

R. F White for appellant.

(1) Article 8, Chap. 119, R. S. 1919, provides for the collection of all taxes "except back taxes" and for compensation therefor. Compensation is fixed by Section 12927, for "all taxes except back taxes." All collections made before the return of "delinquent lists" on the first Monday in March, are made under this article and the compensation fixed by this article is the only compensation legally provided for. On first Monday in March all taxes not collected are returned to the county court as a "delinquent list." Secs. 12930, 12934 12910, R. S. 1919. (2) Article 9 of said Chapter 119 provides for the collection of all "back taxes." Back taxes are defined in Section 12929 of said article, as "taxes which have been heretofore returned delinquent." After the return of delinquent lists "back-tax books" are made; such delinquent tax then becomes "back taxes." Secs. 12929, 12935, R. S. 1919. Said Article 9 proceeds with provisions for the collection of such "back taxes" by suit and levy, and provides, Section 12959, for the extra compensation to the collector among other fees for services rendered "under this article," such compensation "to be taxed as costs and paid by the party redeeming."

W. S. Stillwell, John A. Gilbreath and George F. Longan for respondent.

(1) Article VIII has to do with the collection of the current tax, the settlements of the collector and the commission to be retained by him (Sec. 12927) from the revenue collected, which especially excepts his compensation for collecting back taxes. (2) Article IX relates to "delinquent and back taxes," and the first section under this article (Sec. 12928) provides that "all real estate upon which the taxes remain unpaid on the first day of January, annually, shall be deemed delinquent." Section 12932 of the same article provides that "for the purpose of this chapter, personal tax bills shall become delinquent on the first day of January following the day when said bills are placed in the hands of the collector. Then follows certain sections defining the duties of the collector with respect to the collection of the delinquent and back tax, the article concluding with Section 12959 allowing the collector for his services rendered under the provisions of said article, four per cent on all sums collected to be taxed as costs and collected from the taxpayer. (3) Taxes become delinquent on January 1st following the year for which they were levied. Secs. 12928, 12932, R. S. 1919; State ex rel. v. Fulks, 247 S.W. 129. (4) The collector is entitled to a commission of four per cent on delinquent tax to be paid by the taxpayer. Sec. 12959, R. S. 1919; State ex rel. v. Hawkins, 169 Mo. 615; Dameron v. Hamilton, 264 Mo. 121; Hethcock v. Crawford County, 200 Mo. 170.

OPINION

Graves, P. J.

This is an appeal from a judgment of the Circuit Court of Miller County quashing its alternative writ of mandamus issued at the relation of appellant.

The petition for mandamus after setting out that the appellant was a resident taxpayer of Miller County, Missouri, and that the respondent was the duly elected, qualified and acting Collector of the Revenue of Miller County, Missouri, alleges that there was levied against appellant's property for the year 1923 the sum of $ 24.05 as taxes; that appellant on January 18, 1924, remitted to respondent the sum of $ 24.33, being the tax assessed as aforesaid plus the sum of twenty-five cents for the one per cent penalty fixed by Section 12906, Revised Statutes 1919; that the respondent returned said remittance and refused to accept the same, but demanded an additional sum of ninety-seven cents; that on February 11, 1924, the appellant made a cash tender to respondent at his office of the sum of $ 24.58, being the tax aforesaid, plus two months' penalty as fixed by Section 12906; and that respondent refused to accept the payment of said taxes and penalties so tendered. The prayer was for a writ of mandamus compelling the acceptance of the tender, and for the issuance of a receipt therefor.

The trial court issued its alternative writ of mandamus in due form, to which the respondent made return in due time.

The return of respondent admits that appellant was a resident and taxpayer of Miller County, and that respondent was the duly elected, qualified and acting Collector of the Revenue of Miller County; that taxes in the sum of $ 24.05 were assessed on real and personal property of appellant for the year 1923; that appellant on February 11, 1924, made tender of the sum of $ 24.58 in extinguishment of said tax lien; and that respondent refused to accept the same.

Further answering the respondent alleged that appellant's taxes became delinquent from and after January 1, 1924, under the provisions of Sections 12928 and 12932, Revised Statutes 1919, and that in addition to the one per cent per month penalty (in the form of an additional tax to be duly accounted for and turned over by the collector as provided for by Section 12906) respondent was entitled, as an emolument of his office, to a fee of four per cent on the sum collected under the provisions of Section 12959, Revised Statutes 1919, which amount of said fee appellant did not include in his tender; and that before appellant could have lawfully demanded his tax receipt he should have tendered the amount of said fee.

The case was submitted on the pleadings with the judgment of the trial court as heretofore stated. A motion for new trial in proper form preserving the appellant's contention was timely filed, and upon being overruled by the court nisi this appeal was duly taken and the cause lodged here. The case involves the construction of the revenue laws of the State, hence our jurisdiction. [State ex rel. v. Hawkins, 169 Mo. 615.] Our late and much-lamented Brother Lamm reviews all the cases on question of jurisdiction in State ex rel. v. Adkins, 221 Mo. l. c. 114 to 118, and sustains the Hawkins case, supra,

I. There is but one question for decision in this case, and that is, at what time does the collector of revenue become entitled to the fee of four per centum under the provisions of Section 12959?

The contention of the appellant is that the collector is not entitled to this fee until after the delinquent lists have been made up and turned over to the county court, on the first Monday in March, under the provisions of Sections 12910 and 12930, Revised Statutes 1919, and corrected, made up into a back-tax book and certified back to the collector under the provisions of Sections 12934 and 12935, Revised Statutes 1919; and that said fee allowed by Section 12959 only applies to back taxes in the light of Section 12929, Revised Statutes 1919. The respondent contends that he is entitled to the fee on and after January 1st on taxes delinquent on that date under the provisions of Sections 12928 and 12932, Revised Statutes 1919.

Section 12927, Revised Statutes 1919, provides that the collector shall receive as full compensation for his services in collecting the revenue, except back taxes, certain fees in accordance with the total amount of taxes levied in his county. This is the last section of Article 8, Chapter 119, Revised Statutes 1919, which begins with Section 12875. The compensation fixed by Section 12927 is for taxes collected before delinquency.

It is true that Section 12910 is a part of Article 8 for which Section 12927 fixes the compensation of the collector for collecting the revenue, and that Section 12910 provides for the return of the delinquent lists and back-tax books to the county court on the first Monday in March. Appellant's contention is that the duty of so making up the delinquent list and reporting the same to the county court is one that is compensated under Section 12927. We have held that this section (12910) was only for the purpose of effecting a settlement between the collector and the county court. In State ex rel. v. Renshaw, 166 Mo. 682, we said of this very section, at page 691:

"The defendant, however, claims that the tax does not become delinquent until after the collector has returned the delinquent lists (required to be made by Section 7624) and the back-tax books (in St. Louis, the uncollected tax bills and the back-tax books) to the county court, as required by Section 7627, Revised Statutes 1889, and until after the delinquent lists have been again delivered by the county court to the collector, as required by Section 7653, Revised Statutes 1889.

"This is a misapprehension. The purpose of these provisions is this: At the beginning of the year the tax-books (in St Louis the tax bills) are delivered to the collector (Sec. 7598) and he is charged with the whole amount of the taxes specified in the tax-book. On the first Monday in March of the next year, he is required to settle with the county court. He does this by returning the tax-book and delinquent list, and the amount shown thereby to have been uncollected, deducted from the total amount specified in the tax-books, shows how much cash he has collected, and the collector is then credited with the cash collected and the uncollected tax bills, and thus the charge of the full amount specified in the tax-books is balanced. Thereafter the delinquent list is again turned over to the collector and he is again charged with the whole amount thereof as so much cash, and at his next annual settlement this is returned and his account balanced as before.

"But this is only for the purpose of effecting a settlement with the collector. It...